Cavanaugh v. State, Dept. of Social Services, 80SA304

• Decision Date: 15 March 1982
• Docket Number: No. 80SA304,80SA304
• Citation: 644 P.2d 1
• Parties: Yvonne CAVANAUGH, d/b/a the Tot College, Plaintiff-Appellant, v. STATE of Colorado, DEPARTMENT OF SOCIAL SERVICES, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1

644 P.2d 1

Yvonne CAVANAUGH, d/b/a the Tot College, Plaintiff-Appellant, v. STATE of Colorado, DEPARTMENT OF SOCIAL SERVICES, Defendant-Appellee.

No. 80SA304.

Supreme Court of Colorado, En Banc.

March 15, 1982.

Rehearing Denied May 3, 1982.

Joseph A. Davies, P. C., Patrick J. Canty, Joseph A. Davies, Denver, for plaintiff-appellant.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Maurice G. Knaizer, Asst. Atty. Gen., Human Resources Section, Denver, for defendant-appellee.

LEE, Justice.

This is an appeal from an order of the district court holding the appellant, Yvonne Cavanaugh, in contempt of court. We affirm.

The appellant was the plaintiff in the lower court seeking review under section 24-4-106, C.R.S.1973, of an administrative decision to revoke her license to operate a day-care center for children. Appellant had been the owner and operator of The Tot College in Lakewood, Colorado since 1970. The operation of child care centers is regulated by Section 26-6-101 et seq., C.R.S.1973, which requires licensing from the Colorado State Department of Social Services (Department) in order to maintain certain minimum standards for child care services. Appellant was granted a six-month provisional license to operate her day-care center in April of 1972. Before the license expired, a caseworker for the Department visited The Tot College and prepared a report detailing violations of the regulations found to exist at the child care facilities. A letter summarizing that report was sent to appellant on November 1, 1972, notifying her of the alleged deficiencies and requesting a written response detailing how she planned to correct the violations and comply with the regulations. Appellant did not respond as requested. Later, several attempts were made by the employees of the Department of Social Services to enter and inspect The Tot College. Each time the appellant or her staff refused to permit inspection. Section 26-6-107, C.R.S.1973, authorizes the Department to make such inspections. ¹

Appellant was several times warned that her license to operate the child care center would not be renewed if she persisted in refusing to allow an inspection. ² Finally, an administrative hearing was held on June 15, 1975, in accordance with section 26-6-108(3), C.R.S.1973, and section 24-4-105, C.R.S.1973, et seq. Appellant raised several constitutional issues disputing the Department's authority to make inspections of her business. The hearing officer did not consider constitutional arguments, but he determined that the refusal to allow inspection was a sufficient basis upon which to rescind the provisional license and to deny the application for renewal of the license. See Section 26-6-108(2)(g), C.R.S.1973.

Appellant then sought judicial review of the administrative decision under section 24-4-106, C.R.S.1973, due to the Department's refusal to renew her license to operate The Tot College. She asked for declaratory relief concerning the constitutionality of section 26-6-101 et seq., C.R.S.1973, and of certain rules and regulations of the Department of Social Services promulgated pursuant to Section 26-6-106, C.R.S.1973. Trial was had in January of 1978, and the court entered its final order in accord with the proposed findings submitted by counsel for the Department on June 27, 1978, and affirmed the agency action. The court upheld the constitutionality of the statute and the rules and regulations of the Department and enjoined the appellant from further operation of The Tot College without first obtaining a valid license. See, section 26-6-111, C.R.S.1973.

Appellant's counsel then prepared a motion for stay of the judgment pending appeal and a motion requesting an extension of time in which to file a new trial motion. The motions, although served upon opposing counsel, were never filed with the court. ³ Appellate proceedings from the judgment were ineffectively pursued and eventually dismissed. ⁴ Appellant's counsel was discharged and appellant appeared pro se in subsequent proceedings except as hereinafter noted.

Soon after the judgment was entered, it was observed that The Tot College was still in operation. An investigator for the Department obtained a search warrant and accompanied police to The Tot College to determine if it was operating in violation of the injunction. Twenty-six children were observed on the premises. On August 23, 1978, the district court found the plaintiff in contempt for violating the injunction and ordered her to pay a $300 fine and to be imprisoned in the county jail for five days. She appeared pro se and a stay of execution of the contempt order pending appeal was granted on the condition that appellant refrain from violating the injunction. This appeal was dismissed by the court of appeals for failure to prosecute in December 1978. Because appellant continued to operate her child care facility, she was again found in contempt on February 15, 1979 and the previously ordered fine and imprisonment sentence were executed against her. She duly served her sentence and paid her fine.

Appellant, though unlicensed, persisted in operating the day-care facility and on March 31, 1979 she was fined an additional $1,000 for contempt. The fine was stayed for 30 days and a hearing was scheduled. She obtained new counsel and a continuance was granted. A motion for correction of the record under C.R.C.P. 60(a) and for relief from judgment was filed. Briefs were submitted and arguments were had on the issues relating to the validity of the order of June 27, 1978 and the failure to effectively file a new trial motion. The district court declined to grant the relief requested. The court once again found the plaintiff to be in contempt but stayed its order for 30 days to allow the plaintiff to purge herself of contempt; failing to do so, the $1,000 fine would be imposed. It is from that order the appellant here seeks relief.

I.

The appellant questions the validity of the Child Care Act because she claims that it was improperly enacted. She refers to the fact that the bill was enacted as an emergency measure, and therefore it is not subject to public referendum. ⁵ She argues the law was not enacted for the stated reasons and was therefore void. She further contends that the district court was without power to hold her in contempt for violating an injunction entered to enforce the provisions of an invalidly enacted act.

We reject the appellant's argument. This court has long held that declarations of purpose in a legislative enactment under this emergency measure exemption are conclusive and are not subject to judicial review. Van Kleeck v. Ramer, 62 Colo. 4, 156 P. 1108 (1916). We decline to depart from clear precedent at this juncture. A statement of purpose in enacting legislation under this clause is a matter of legislative policy. Therefore, the act is not void because of the enactment procedure utilized. ⁶

II.

Appellant's challenge to the contempt order of December 18, 1978, to which this appeal is directed, is based on a collateral attack on the judgment affirming the agency action entered on June 27, 1978. The appellant had 15 days in which to file a motion for a new trial. This was not done. Although motions requesting a stay and an extension of the time in which to file a new trial motion were prepared and served on opposing counsel, they were not filed with the court until the latter part of May 1979, then only as attachments to appellant's C.R.C.P. 60 motion. It is clear that the timely filing of a motion for a new trial is a jurisdictional prerequisite to appellate review. Rowe v. Watered Down Farms, 195 Colo. 152, 576 P.2d 172 (1978); Kopff v. Judd, 134 Colo. 330, 304 P.2d 623 (1956); Niles v. Shinkle, 119 Colo. 458, 204 P.2d 1077 (1949).

The appellant argues that the failure to file the motion for new trial was a result of inadvertence and clerical error on the part of either her former counsel or the court clerk. Therefore, she argues, she should not be penalized for the failure to perfect an appeal of the June 27, 1978 judgment. Appellant does not direct us to any facts to support her assertion that the clerk of the court somehow failed to receive and file her motions. We can only conclude that the failure to comply with C.R.C.P. 59 was her counsel's sole responsibility and not that of the clerk of the court. ⁷

Appellant's position is that the collateral attack on the judgment of June 27, 1978 is proper since the district court erred in not granting relief from the judgment under C.R.C.P. 60(a) and (b).

C.R.C.P. 60(a) allows correction of a clerical mistake by the clerk of the court at any time. Since appellant has not demonstrated a clerical mistake by the clerk and none appears in the record, this basis for relief is groundless. Unexcused attorney failure to diligently proceed on behalf of his client does not constitute clerical error justifying relief under this section. Hatcher v. Hatcher, 169 Colo. 174, 454 P.2d 812 (1969); see also, Link v. Wabash Railroad, 370 U.S. 626, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962) (case dismissal for attorney's unexcused neglect does not unfairly penalize party employing that attorney).

Likewise the claim for relief due to inadvertence under Rule 60(b)(1) must also fail. The rule clearly states that such claims must be raised "not more than six months after the judgment, order, or proceeding was entered or taken." The judgment was entered on June 27, 1978, approximately ten months before this issue was raised in appellant's C.R.C.P. 60 motion. Thus, relief under this section of the rule is also unavailable. Atlas Construction Co. v. District Ct., 197 Colo. 66, 589 P.2d 953 (1979), Love v. Rocky Mountain Kennel Club, 33 Colo.App. 4, 514 P.2d 336 (1973).

Rule 60 also contains a residuary clause which allows relief from judgment for "any other reason justifying relief from the...